1805. the following written memorandum to the defendant, signed WILLOUGHBY by him and attested by the witnesses to the bond: against SWINTON. "Memorandum. Whereas A. D. Swinton (the defendant) hath this day given and executed to me a bond in the penal sum of 10807. conditioned for the payment of 4941. 4s. 5d. by instalments, at the rate of 50l. a year; now, I do hereby declare, that nothing in the said bond contained shall au thorize me to proceed upon any default of payment for any sum which shall not have become actually due at the time, nor tend in any manner to accelerate any of the other payments mentioned in the said bond, or the condition thereof; as witness," &c. After payment of part of the instalments, the defendant was arrested in Michaelmas term last in an action of debt for the whole penalty, but was only holden to bail for 75 l. then due on the bond; to which he pleaded that the bond was obtained by covin; and on issue joined, the plaintiff obtained a verdict without defence, and had 551 judgment as of last Hilary term; and in Easter term the costs were taxed at 617. which, together with 801. 5s. 6d. the amount of the instalments, and interest due thereon, were paid to the plaintiff's attorney. On the 1st of June last, a further instalment of 50 l. became due, for which the plaintiff afterwards issued the present writ of fiere facias, return. able in Trinity term, grounded on the same judgment, and made the levy in question: which writ is for 10897. and also 61 7. damages, and indorsed to levy 501. and interest from the 1st of June, together with the sheriff's poundage, &c. and under this writ 53 1. 6s. has been paid. Parnther shewed cause against the rule, and contended, that it was not necessary to sue out a scire facias to revive the judgment in this case, in order to warrant the levy for the subsequent instalment ; but that the judgment stood as a security for the remaining instalments as they became due, with a stay of execution, which might be taken out at any time within a year after each default, without a scire facias and that such was recognized to be the practice (a), founded upon decided cases; Bridges v. Williamson (b), Darby v. Wilkins (c), Masfen v. Touchet (d), and particularly Gowlett v. Hanforth (e), which turned on the construc (a) 2 Tidd's Pract. 1037. (b) 2 Stra. 814. (c) lb. 957. (e) 2 Blac. Rep. 958. tion of the stat. 8 and 9 W. 3, c. 11, s. 8; and Ogilvie v. Foley (f). The stat. of King William, which directs that in all actions on bonds for non-performance of any covenants or agreements, the plaintiff may assign breaches, and the jury shall assess damages, &c. (g), relates not to cases of bonds conditioned for payment of certain sums by instalments, but only to cases where the damages being unliquidated, the intervention of a jury was necessary to ascertain them. The only excepted case is that of an annuity, as in Collins v. Collins (a), which turned, however, upon the statute of set-off (8 Gco. 2, c. 24, s. 5) and was prior to the cases in Black. Reports, which have settled the practice in cases of bonds conditioned for payment of sums certain by instalments. Marryat, in support of the rule, after observing That there was no provision here for a stay of execution, according to the practice referred to in the cases cited, contended that the case of a bond conditioned for the payment of money by instalments was in no respect distinguishable from that of an annuity bond, and must, therefore, be governed by the authority of Collins v. Collins, which had 1805. WI LOUGHBY against SWINTON. | 552 ] [ 553 ]] (a) 2 Blac. Rep. 111. sed vide Howel v. Hanforth, 2 Blac. Rep. 843, and 1016. (b) That statute enacts, "That in all cases upon bond, &c. for non-performance of any covenants or agreements in any deed, &c. the plaintiff may * assign as many breaches as he thinks it, and the jury shall and may assess not only such damages and costs as have heretofore heeu usually done in such cases, but also damages for such of the said breaches so to be assigned as the plaintiff upon the trial of the issues shall prove to have been broken, and that the like judgment shall be entered as heretofore," &c. Then, after providing for the payment of so much as shall be then found to be due, and staying execution of the judgment as to residue, it proceeds to enact that "such judgremain as a further security to answer to the plaintiff such damages as shall or may be sustained for further breach of any covenant in the same deed, &c. upon which the plaintiff may have a scire facias upon the said judgment against the defendant, &c. suggesting other breaches of the said covenants or agreements, and to summon him to shew canse why execution should not be awarded upon the said judgment; upon which there shall be the like proceeding as was in the action of debt upon the said bond for assessing of damages upon trial of issues joined upon such breaches, &c.; and toties quoties," &c. * The statute is compulsory on the plaintiff to assign breaches. Rules v. Roseweil, 5 Term Rep. 538, and Hardy v. Bern, ibid. 636. (c) 2 Burr. 820. The opinion of the Court was also given upon the stat. 8 and 9 W. 3, c. 11, s. 8. Ff2 been 1805. WILLOUGHBY against SWINTON. [ 554 ] been acted upon since (a) the cases in Blackstone's Reports, when the rule had been more accurately considered. He was then proceeding to draw in aid of the defendant the memorandum, whereby the plaintiff stipulated not to proceed upon the bond for any default of payment beyond what was actually due at the time: but the Court intimated that that did not carry the matter further than the law itself would direct. Lord ELLENBOROUGH, C. J. The opinion of the Court in the case of Collins v. Collins (b) has entirely decided the present question; for when it was considered that in the case of an annuity execution could not be sued out for arrears accruing subsequent to the judgment, without a scire facias, as required by the stat. 8 and 9 W. 3, c. 11, s. 8, it decided the present question; for there can be no difference between a bond to secure an annuity for life, and a bond to secure a certain number of annual payments for so many years the same reason must govern both cases; and I believe the practice has generally conformed to it; and there is this convenience in it, that if the obligee has made subsequent payments on account, he may plead that to the scire facias, and thereby secure himself from further injury. GROSE, J. declared himself of the same opinion. LAWRENCE, J. This is not distinguishable in principle from the case of Collins v. Collins: nor does it differ otherwise than that this is a bond for a debt payable by instalments, which was there admitted to be within the statutes of King William and Geo. 2, though the case of an annuitybond was contended not to be within them; but a bond for securing an annuity for life was there decided to be within those statutes; and this is the same thing: for, What is an annuity-bond but a bond for securing certain sums payable at certain times during the life of the party? and this bond is for securing certain sums at certain times for a limited period. It is also a bond for the performance of an agree ment in writing; and, therefore, comes expressly within (d) Vide Walcot v. Goulding, 8 Term Rep. 126; where it was expressly decided that after judgment for the plaintiff on demurrer in debt on bond conditioned for payment of an annuity, the defendant could not take out exe cution for the arrears due, but was obliged to assign breaches on the record under the stat. 8 and 9 W. 3, C. II, 3. 8. (b) 2 Burr. 820. the the words of the stat. 8 and 9 W. 3. The case then of the annuity-bond is so very similar to the present, that after that decision I cannot say that this case does not come within the statute of King William. LE BLANC, J. Since it has been decided that an annuity-bond is within the statute of King William, it is impossible to distinguish it from the present case, and to say that this does not fail within the same principle: but I cannot help thinking that it is a severe measure of justice against creditors, to oblige a creditor who has consented to wave the enforcing of his whole demand at the time, upon condition that he shall receive his debt by instalments at certain. periods, to bring a fresh action for every instalment which is due: but it having been so decided in the case of an annuity-bond, I cannot say that this case must not be governed by it. 1805. WILLOUGHBY against SWINTON. Rule absolute. [555] MARTIN and Others against SMITH. Friday, In assumpsit hy the vendor against the vendee of land for pot accepting it money, the plaintiff averseised in fee of the land, and red that he was IN N assumpsit against the vendee of land, for not perform. ing his agreement to purchase on certain terms, the first count of the declaration stated, That whereas the plaintiffs on the 10th of March, 1804, were seised in their demesne and paying the as of fee of and in certain lands, &c. in the parish of purchaseBluntisham, in the county of Hants; and being so seised, caused P. C. &c. auctioneers, to sell by auction the said lands, &c. subject to certain conditions of sale, viz. (inter alia) 1st, That the highest bidder should be the purchaser; 3d, That the purchaser should pay down immediately a deposit of 20 1. per cent. in part of the purchase-money, and sign an agreement for payment of the remainder on or before the 94th of June, 1804, on having a good title; 4th, That the purchaser should have proper conveyances, toge that the defend ant agreed to purchase it on title, and that having a good his title to the land was made good, perfect, and satisfactory to the defend ant; and that he, the plaintiff,bad bsen always ready and willing, and offered to convey the lands to the defendant, but that the defendant did not pay the purchase-money: and, on demurrer, held that such general allegations of title in the plaintiff, and that his title was made good and satisfactory to the defendant, and that the plaintiff was ready and willing, and offered to convey to the defendant, were a tantamount to performance of the agreement on his part so as to entitle him to recover for a breach of the defendant's part, in not paying the purchase-money. ther with such attested copies as might be thought neces sary, at his own expence, on payment of the remainder of the purchase-money, conformably to the third condition, &c.; and lastly, That should the purchaser fail to comply with these conditions, the deposit-money should be forfeited, and the vendors be at liberty to resell the estate; and the deficiency, if any, together with all charges, should be made good by the defaulter &c.; and whereas the defendant attended at the sale, and was the highest bidder and purchaser of, and did at such sale accordingly purchase certain of the said lands, &c. viz. a parcel of freehold woodland, called Bluntisham Low Wood, &c. in the parish of Bluntisham, in the said county, for 1500l.; and thereupon, in consideration that the plaintiffs at the request of the defendant had promised the defendant to perform the conditions of sale on their parts as sellers, &c. the defendant promised the plamtiffs to perform the said conditions of sale on his part as the purchaser, &c. The count then alleged, that the defendant, in part performance of the said conditions of sale and of his promise, &c. made a deposit of 300 7. at the sale, in part of the purchase-money, and signed an agreement that he would comply with all the other conditions, &c.; and then the plaintiffs averred, That though after the sale, and the promise of the defendant, and before the 24th of June, 1804, in the said conditions mentioned, the title to the said lands, &c. was made good and perfect, and satisfactory to the defendant, according to the said conditions of sale as aforesaid; and that they have always from the time of the said sale and the said promise, &c. hitherto been ready and willing,' and afterwards, to wit, on, &c. " offered to convey the said lands, &c. to the defendant, according to the said conditions of sale," and have been always ready and willing to do and perform all things on their parts to be done and per formed according to their said promise, &c.; and of all which premises the defendant had due notice; nevertheless the defendant, not regarding his said promise, &c. did not on or before the said 24th of June, 1804, nor at any other time whatsoever, pay to the plaintiffs the said 12007. the residue of the said 15007. the purchase-money, &c. in viola tion of his promise, &c. There were two other special counts, which it was admitted on the argument could not be supported; |